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4.09.2010

Public trust doctrines

An article on western states' public trust doctrines - "emphasis on the plural" according to author Robin Kundis Craig - appears in the latest Ecology Law Quarterly. In the "arid West," a state's public trust doctrine is a legal tool "that can re-balance private and public rights in water."

The article notes four key factors in the evolution of public trust doctrines in the West:

the severing of water rights from real property ownership and the riparian rights doctrine,

subsequent state declarations of public ownership of fresh water,

clear and explicit perceptions of the scarcity of water and the importance of submerged lands and environmental amenities, and

a willingness to consider water and other environmental issues to be of constitutional importance and/or to incorporate broad public trust mandates into statutes.

From these factors, the author found two important trends:

the extension of public rights based on states’ ownership of the water itself, and

an increasing, and still cutting-edge, expansion of public trust concepts into ecological public trust doctrines that are increasingly protecting species, ecosystems, and the public values that they provide.

An appendix provides summaries of the public trust doctrines of 19 western states: AK, AZ, CA, CO, HI, ID, KS, MT, NE, NV, NM, ND, OK, OR, SD, TX, UT, WA, and WY. The water law system of Hawaii is described as: "Combination of Native Hawaiian rights with elements of both riparianism and prior appropriation."

"A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust" (pdf, 146pp/756kB), in Ecology Law Quarterly, 2010, vol. 37, no. 1, pp. 53-197